I

107TH CONGRESS

1ST SESSION H. R. 864

To restore the separation of powers between the Congress and the President.

IN THE HOUSE OF REPRESENTATIVES

MARCH 6, 2001

Mr. PAUL introduced the following bill; which was referred to the Committee

on the Judiciary

A BILL

To restore the separation of powers between the Congress

and the President.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Separation of Powers

5 Restoration Act’’.

6 SEC. 2. FINDINGS.

7 The Congress finds the following:

8 (1) As a limit on governmental power, Constitu9 tional framers vested Federal powers in three co10 equal branches of government, each with unique and

11 limited powers and each with a coequal duty to up-
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1 hold and sustain the Constitution of the United

2 States.

3 (2) A Supreme Court justice stated, ‘‘The doc4 trine of the separation of powers was adopted by the

5 convention of 1787 not to promote efficiency but to

6 preclude the exercise of arbitrary power. The pur7 pose was not to avoid friction, but, by means of the

8 inevitable friction incident to the distribution of the

9 governmental powers among three departments, to

10 save the people from autocracy.’’ Myers v. United

11 States, 272 U.S. 52, 293 (1926) (Brandeis, J., dis12 senting).

13 (3) James Madison, quoting Montesquieu, stat14 ed in Federalist 47, ‘‘ ‘There can be no liberty where

15 the legislative and executive powers are united in the

16 same person, or body of magistrates.’ ’’

17 (4) Article I of the Constitution provides, ‘‘All

18 legislative powers herein granted shall be vested in

19 a Congress of the United States.’’

20 (5) A congressional committee print has noted

21 that, ‘‘[b]ecause the President has no power or au22 thority over individual citizens and their rights ex23 cept where he is granted such power and authority

24 by a provision in the Constitution or by statute, the

25 President’s proclamations are not legally binding
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1 and are at best hortatory unless based on such

2 grants of authority.’’ 85th Cong., 1st Sess., Execu3 tive Orders and Proclamations: A Study of a Use of

4 Presidential Powers (Comm. Print 1957).

5 (6) The Supreme Court has stated that, even if

6 Presidents have, without congressional authority,

7 taken actions only the Congress may take, ‘‘Con8 gress has not thereby lost its exclusive constitutional

9 authority to make laws necessary and proper to

10 carry out the powers vested by the Constitution ‘in

11 the Government of the United States, or any De12 partment of Officer thereof.’ ’’ (Youngstown Sheet

13 and Tube Co. v. Sawyer, 343 U.S. 579 (1952)).

14 (7) Treaties or Executive Agreements which

15 purport to assign powers not amongst those specifi16 cally granted to the Federal Government by the

17 Constitution are non-binding and cannot constitute

18 law.

19 SEC. 3. EFFECT OF PRESIDENTIAL ORDERS.

20 (a) LIMITED EFFECT OF PRESIDENTIAL ORDERS.—

21 A Presidential order neither constitutes nor has the force

22 of law and is limited in its application and effect to the

23 executive branch.

24 (b) EXCEPTIONS.—Subsection (a) does not apply

25 to—
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1 (1) a reprieve or pardon for an offense against

2 the United States, except in cases of impeachment;

3 (2) an order given to military personnel pursu4 ant to duties specifically related to actions taken as

5 Commander in Chief of the Armed Forces; or

6 (3) a Presidential order citing the specific con7 gressional enactment relied upon for the authority

8 exercised in such order and—

9 (A) issued pursuant to such authority;

10 (B) commensurate with the limit imposed

11 by the plain language of such authority; and

12 (C) not issued pursuant to a ratified or un13 ratified treaty or bilateral or multilateral agree14 ment which—

15 (i) violates the ninth or tenth amend16 ments to the Constitution; or

17 (ii) makes a delegation of power to a

18 foreign government or international body

19 when no such delegating authority exists

20 under the Constitution.

21 SEC. 4. REQUIREMENT OF STATEMENT OF AUTHORITY FOR

22 PRESIDENTIAL ORDERS.

23 (a) STATEMENT OF AUTHORITY.—The President

24 shall provide for each Presidential order a statement of

25 the specific statutory or constitutional provision which in
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1 fact grants the President the authority claimed for such

2 action.

3 (b) INVALIDITY OF NONCONFORMING ORDERS.—A

4 Presidential order which does not include the statement

5 required by subsection (a) is invalid, to the extent such

6 Presidential order is issued under authority granted by a

7 congressional enactment. This subsection applies to Presi8 dential orders in effect on or after the date that is 180

9 days after the date of enactment of this Act.

10 SEC. 5. STANDING TO CHALLENGE PRESIDENTIAL ORDERS

11 WHICH IMPACT SEPARATION OF POWERS IN12 TEGRITY.

13 The following persons may bring an action in an ap14 propriate United States court to challenge the validity of

15 any Presidential order which exceeds the power granted

16 to the President by the relevant authorizing statute or the

17 Constitution:

18 (1) CONGRESS AND ITS MEMBERS.—The Con19 gress, the House of Representatives, the Senate, any

20 Senator, and any Representative to the House of

21 Representatives, if the challenged Presidential

22 order—

23 (A) infringes on any power of Congress;

24 (B) exceeds any power granted by a con25 gressional enactment; or
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1 (C) violates section 4 because it does not

2 state the statutory authority which in fact

3 grants the President the power claimed for the

4 action taken in such Presidential order.

5 (2) STATE AND LOCAL GOVERNMENTS.—The

6 highest governmental official of any State, common7 wealth, district, territory, or possession of the

8 United States, or any political subdivision thereof, or

9 the designee of such person, if the challenged Presi10 dential order infringes on a power of such State or

11 on a power afforded to such commonwealth, district,

12 territory, or possession under any congressional en13 actment or relevant treaty of the United States.

14 (3) AGGRIEVED PERSONS.—Any person ag15 grieved in a liberty or property interest adversely af16 fected directly by the challenged Presidential order.

17 SEC. 6. NATIONAL EMERGENCY POWER DIVESTED TO CON18 GRESS.

19 (a) DIVESTITURE OF AUTHORITY TO DECLARE

20 EMERGENCY.—To the extent that any Act of Congress in

21 effect on the date of enactment of this Act grants to the

22 President or any other officer or employee of the executive

23 branch the power to declare a national emergency, such

24 power is hereby divested to the Congress alone.
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1 (b) TERMINATION OF POWERS UNDER EXISTING

2 STATES OF EMERGENCY.—

3 (1) IN GENERAL.—All powers and authorities

4 possessed by the President, any other officer or em5 ployee of the Federal Government, or any executive

6 agency (as defined in section 105 of title 5, United

7 States Code) as a result of the existence of any dec8 laration of national emergency in effect on the date

9 of enactment of this Act are terminated 90 days

10 after the date of enactment of this Act. Such termi11 nation shall not affect—

12 (A) any action taken or proceeding pend13 ing that is not finally concluded or determined

14 before such date of termination;

15 (B) any action or proceeding based on any

16 act committed before such date termination; or

17 (C) any rights or duties that matured or

18 penalties that were incurred prior to such date

19 of termination.

20 (2) NATIONAL EMERGENCY DEFINED.—For the

21 purpose of this subsection, the term ‘‘national emer22 gency’’ means a general declaration of emergency

23 made by the President or any other officer or em24 ployee of the executive branch.
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1 SEC. 7. PRESIDENTIAL ORDER DEFINED.

2 In this Act, the term ‘‘Presidential order’’ means—

3 (1) any Executive order, Presidential proclama4 tion, or Presidential directive; and

5 (2) any other Presidential or Executive action

6 by whatever name described purporting to have nor7 mative effect outside the executive branch which is

8 issued under the authority of the President or any

9 other officer or employee of the executive branch.

Æ